Raceway Park, Inc. Toledo Maumee Raceways, Inc. v. Local 47, Service Employees International Union

up or cleaned evidence to be physical murder, shortly someone destroyed charged the murder

might have been stands, But as now future.

the foreseeable find forever. We suspect

Gibbs sufficiently factor will the deterrence being required pay with Gibbs’

satisfied Interve- attorney’s fees and the

for own her it was circumstances fees. Under these

nor’s require Gibbs of discretion abuse fees and costs. pay General American’s

also

Therefore, ex- although 1132(g)(1) § does not plaintiffs and

plicitly differentiate between case, do not ERISA we

defendants exceptional ease

think that this is the attor- a defendant should awarded

neys’ fees. judgment of

Accordingly, the district awarding attorney’s fees

court costs Company American Life Insurance

General guardian ad litem vacated.

and to respects affirmed.

judgment other PART; IN VACATED

AFFIRMED IN

PART. INC.; PARK, Maumee Toledo

RACEWAY

Raceways, Inc., Plaintiffs-Appellees, 47, SERVICE EMPLOYEES

LOCAL UNION,

INTERNATIONAL

Defendant-Appellant. 97-4251.

No. Appeals,

United States Court

Sixth Circuit.

Argued Oct. 25, 1999.

Decided Jan. (briefed), Joseph A. Bat- M. Lenavitt

Jack OH, briefed), Toledo, (argued tani Plaintiffs-Appellees. briefed), (argued

Gregory J. Lavelle Macedonia, OH, Defendant-Appellant. DAUGHTREY, panel Before: MERRITT our holding is bound Court’s WISEMAN, Judges; Moog, Circuit District judg- and must therefore affirm the Judge.* ment of the court district instant mat- ter, inspection a close of this prece- Court’s MERRITT, J., opinion delivered the (1) compels dent conclude us to court, DAUGHTREY, J., joined. in which represents grave departure WISEMAN, 963-66), (pp. D.J. delivered a mandating Court doctrine pro- issues of separate dissenting opinion. arbitrability cedural be determined trators, judges, see John OPINION Livingston, Inc. v. MERRITT, Judge. Circuit (1964); 11 L.Ed.2d reconsidered, along opin- should be with this Defendant-Appellant Em Service itself, by panel ion en banc a full of this (“Local ployees International Court. 47”) appeals a U.S. District Court for the Northern District of Ohio

granting judgment summary in favor of I. BACKGROUND Raceway Park, Plaintiff-Appellee Inc. and Raceway operates Raceway Park in Raceways, Tole- (collectively Toledo Maumee do, Ohio, which hosts actual “Raceway”), holding that a on-site horse under races, as parties’ otherwise known either “live races” collective was or “races on inarbitrable, wager- the track.” Parimutuel denying Defendant’s Motion ing is both conducted on “live races” Summary Judgment, at the sought which Park and on races run horse at other dispute. race arbitration said This (simul- tracks nationwide are presents televised case issue of whether a federal cast) Raceway Park. Until the end district court decide that a oth Ohio, the State of excep- with some limited appropriate erwise for arbitration tions, permitted parimutuel betting only is inarbitra on horse races conducted within the ble State of because the notice intent to seek arbi September In however, Ohio. untimely, tration is Ohio whether the issue of Legislature passed a permitting bill timeliness race- is itself issue of Ohio, Raceway Park, tracks in arbitrability such which should be submitted to accept parimutuel wagering Drivers, on horse arbitration. General races Warehouse conducted nationwide. The Helpers, men and Local format for such Union 89 v. Moog Warehouse, wagering, “Full known as Card Louisville Simulcast- 852 F.2d Cir.1988) ing,” allows (reversing race tracks within the judgment State of of district Ohio to substantially court increase their revenue filing which held that timeliness of by allowing wagering on some request question top arbitration to be deter horse by arbitrator), country. races around the mined a decision with which disagree, we requires us to hold that purchase Patrons at Park request timeliness of the for arbitration is in wagering cash tickets issued from ma- Circuit, operated by chines employees of the track despite strong misgivings, we affirm the known perti- as mutuel clerks. At all times judgment of the district court. action, nent to this bargain- Local was the Moog, ing representative this Court held that “the employees. for Plaintiffs question arbitrability February 10,1994, a collec On Raceway and Local 47 —whether tive duty creates a entered bargaining agree- into a collective particular to arbitrate the griev During negotiations ment. for the collec- undeniably ance —is issue for bargaining agreement, de tive which is effective termination.” 31, 1998, 852 F.2d at 873. While this until agreed December * Wiseman, Jr., Tennessee, designation. Honorable A. sitting by Thomas Judge States District for the Middle District of September At salary rate of thir- to the track. clerks a pay mutuel base ($35.50) meeting, produced per day written fifty cents ty-five dollars day. every grievance concerning the effect that Full per races For race on ten based wages. griev- This Raceway agreed Simulcasting that Card beyond day, in a ten paid presented ance due Local were one additional mutuel clerks language apparent “live” race 47’s concern the of for each additional bonus dollar agreement required bargaining the the collective the As A to collec- “on track.” Schedule grievance makes clear: a to be filed within 48 hours after tive occasions, agreed ($1.00) Raceway two to it arose. On Dollar shall added the “One deadline, Sep- any on the 48-hour first for each live race thereafter extend base rate addition, February tember 19 then October daily card.” In signed parties a Letter of the also 9, 1996, parties On both met face- October Understanding, provided, pertinent in Full to-face for the time to discuss last Card agreed purposes further that for part: “It is wages. Simulcasting and its effect on This Contract, any race televised re- of 17, 1996, meeting proved futile. On October Telegraph Park at 5700 ceived presented griev- again Local written betting parimutuel Rd. with shall be counted Raceway’s manager, seeking general ance to purposes of deter- as a race on the track bargain- of the collective enforce terms mining rate.” base ing The agreement as written. parties’ Article V the was not resolved. of Legislature’s Septem- in Ohio governs bargaining parimutuel betting allow on horse ber 1996to grievance procedures. pro- their official in run and televised Ohio races nationwide vides: parties caused the rift between the current wages paid V. AND AR- respect to to Local 47 ARTICLE GRIEVANCE working Raceway It is Park. BITRATION PROCEDURE

members why. After the law difficult to see grievances any by an 5.1. If there are changed, Raceway could bets on Park take dispute employee any or differences or of night, per races over one hundred well any the Em- kind or character between overwhelming majority of which were nation- ployer involving the inter- at the track for mere al races simulcast pretation application of or taking Although purpose wagers. Local rules pro- this work and/or working 47 members as mutuel clerks must Employer, griev- mulgated such process significantly greater now bets on a ance, or shall be handled difference races, number Letter of Understand- following manner: signed by ing parties both states that such (A). aggrieved employee and/or only to races are be counted as “live races” shall, representative of the Union within purpose for the or “races on track” (48) forty eight hours after the is, determining pay. That base rate arisen, employee or became after employees do not receive additional $1.00 mat- aware of such discuss beyond the per race bonus for ever race first desig- his Manager ter the Mutuel though they evening, even ten races of representative. nated those races. process bets on (B). If no reached within (24) twenty hours after such discus- four law, As a result of new officials both sion, be referred writ- the matter shall September Raceway and Local 47 met ing Manager of the Em- to the General 9,1996 September to discuss October by him or ployer and shall be discussed Simulcasting full that Full Card effect represen- designated his her her and/or paid to wages would have on em- employee aggrieved and the tative and/or change ployees. realized that representative within his or her Union bargaining agreement was nec- (24) twenty four hours. essary to the fact that it was not com- due (C). If the is not then resolved pensating employees for the additional tele- Simulcasting the Union submit vised races Full Card question jurisdiction pursuant Executive Committee matter regular meeting, § unit its next shall who at Manage- 28 U.S.C. 1331 and the Labor whether or not Act, § determine to submit ment Relations 185.1 U.S.C. No- binding matter to arbitration. Unless the Complaint Raceway allege where did written Union serves notice via Certified that Local procedurally 47’s Employer thirty Mail on the within Complaint defective. Local 47 answered completion meeting filed Counterclaim to (B), above, Paragraph referred to of its grievance concerning to arbitrate the its al- binding intent to then in seek leged violation of Schedule A and the Letter event, such be barred Understanding to the collective submitting grievance, dispute ever such agreement. Raceway filed an Answer to the disagreement to arbitration. written Such Counterclaim. Both then filed Mo- notice set forth all to be con- shall issues Summary Judgment. Septem- tions for On attorneys Three local will sidered. be 22, 1997, granted ber the district court Race- picked purpose for the of arbitration. One way’s Judgment Motion Summary and by by Employer, and a denied 47’s motion. impartial attorney. third analysis The district court’s limited focused award of the arbitra- timing on the of Local 47’s arbitration de- binding par- tion shall final on mand. The court stated: authority ties. The of the shall arbitrators case, In this the Union made its arbitration appli- to the limited 20, 1996, on thirty-four demand November cation provisions of the terms and days filing forty- Agreement. They right, no days meeting two after the final power authority amend, change the Union and the Racetrack. The Union modify Agreement. expenses this Their deny any pleadings does not of its equally by parties. shall be borne its arbitration untimely. demand was By Raceway and Between binding Since demand failed to 3, 20, Local 47 at J.A. 13. On November thirty arbitration within after meet- 1996, Local 47 notified itsof desire ing Racetrack, with the it is forever barred proceed interpreta- to arbitration for an demanding by from terms tion of express of the collective of the CBA. related to the base 22,1997). Op. (Sept. Memorandum at 4 pay. Raceway rate of proceed refused to grounds arbitration on the 47 that Local Trilogy II. THE Steelworkers exceed time limit the col- established AND ITS PROGENY notifying lective proceed desire to arbitra- In three cases decided in 1960 and known tion. collectively Trilogy,” as the “Steelworkers 16, 1996, strongly

On endorsed December filed a declaratory judgment use of arbitration as a action in U.S. mechanism for resolv Dis- ing Ohio, disputes arising trict industrial Court for Northern under collec District seeking bargaining agreements. tive wages a declaration that “issues See United per hour their v. Enterprise [Local 47] Steelworkers Wheel & Car 593, 1358, are binding Corp., to arbitration and are 363 U.S. 80 4 S.Ct. L.Ed.2d (1960); on plaintiffs agree- and defendants until the 1424 v. Steelworkers Warrior 31, expires Co., ment Navigation 574, December 1998.” & 80 U.S. S.Ct. ¶ Compl. 1347, (1960); 9. The district court had federal 4 L.Ed.2d 1409 United Steel- 301(a) 1. Management Section organizations, may Rela- Labor such labor provides: tions Act of 1947 any district having court of the United States jurisdiction parties, respect without Suits for violation of contracts between an employer organization represent- controversy regard a labor the amount in or without ing employees industry affecting citizenship parties. in an com- Act, 185(a). § merce defined in or between 29 U.S.C. Co., 564, anything to there cannot be arbitrate and the Mfg. v. American U.S. workers (1960). provide 1343, contract be said to for arbi- cannot Predi L.Ed.2d 80 S.Ct. Cutler-Hammer, tration.” at 67 N.Y.S.2d extent, cated, large fear to a on its of labor unrest, Gulf, 363 U.S. at see Warrior & (noting alternative to arbi 80 S.Ct. beginning In a five series of decisions

trating arising out of bar claims cases, however, Trilogy two of three strife”), agreements “industrial gaining deliberately molded the relied section 301 the Labor the Court proper scope pre-arbitration judicial inter hold Management Relations Act to Paperworkers vention. See United Int’l Un Misco, Inc., ion, regard of a to arbitration function court with U.S. AFL-CIO (1987); assuring that 108 S.Ct. 98 L.Ed.2d 286 AT & limited to claim T Inc. v. contract, Technologies, Communications see governed American Am., (2) Workers 475 U.S. S.Ct. 567-68, 1343; Mfg., 363 U.S. at 80 S.Ct. (1986); 89 L.Ed.2d 648 unless ar ordering to arbitration Inc. v. Livingston, 376 U.S. 84 S.Ct. susceptible in clause of an bitration “is (1964); Gulf, Warrior & L.Ed.2d terpretation the asserted dis that covers (1960); U.S. 80 S.Ct. 1347 American Gulf, pute,” Warrior & (1960).2 Mfg., 363 U.S. 80 S.Ct. 1343 1347; (3) refraining re viewing long the so it merits of an award as America v. Ameri Steelworkers of by a Manufacturing the bar can Co. involved a suit “draws essence from collective Wheel, compel grievance union to arbitration a gaining agreement,” Enterprise union, acting the which on behalf of one of its U.S. at S.Ct. 1358. members, filed with that em member’s Prior to states courts hesitated question ployer. employee in left his provisions. enforce arbitration employ injury brought due to an then an willing to en Even where state courts were compensation Two action for benefits. they bargaining agreements, force collective settled, weeks case union filed a after the reluctantly. example, did so For often grievance, claiming employee was Machinists v. International Association of job by entitled to his virtue of a to return Cutler-Hammer, 271 A.D. 67 N.Y.S.2d seniority provision in the collective union’s (N.Y.) curiam), (per aff'd, 297 N.Y. the American (N.Y.1947) curiam), (per 74 N.E.2d 464 a Manufacturing Company. the Re When by the expressly repudiated Steelwork case arbitrate, spondent refused to the union Trilogy, Mfg., see ers American U.S. at brought suit in the U.S. District Court 566-67, (citing 80 S.Ct. 1343 Cutler-Hammer The dis the Eastern District of Tennessee. having principle could “announced having employee, trict court held only crippling have a effect accepted settlement the basis of arbitration”), state court held that a disability, permanent estopped partial initially pertinent judge must review con any seniority employment claiming from language tractual and determine whether rights. Accordingly, granted compa actually their parties had intended arbitra Summary ny’s Judgment. This Motion existing controversy. tion clause cover the In affirmed for other reasons. revers Moreover, griev if a court concluded ing appeals, the court of prevail could on the ing party merits judi mapped for the out a circumscribed role dispute, ordering should abstain ciary matters where concerned stated: “If the negotiated agree arbitration. The state court rights. Doug meaning provision contract ments to their Justice define Court,3 las, stat- beyond dispute, writing for a unanimous 8-0 sought to be is arbitrated part Trilogy, 3. Justice Black took no the consideration 2. The third case in the Steelworkers Enterprise United Steelworkers v. Wheel & Car the case. or decision of Corp., L.Ed.2d (1960), question of what role addressed post-arbitration should review courts take in the a labor award. arbitrator's very repair ed: “The function court is limited routine maintenance and work on its barges. agreed employees parties have submit all own at that hub when the covered a collective questions interpretation to were of contract negotiated by the United Steel- ascertaining is arbitrator. confined to Respon- workers. Between 1956 seeking is party whether considerably dent reduced its work-force governed making a claim which on its face is began contracting pre- out maintenance work by the 363 U.S. at contract.” viously employees. done Many its own Court also made clear that S.Ct. 1343. The actually hired, the laid-off workers were assessment of the merits individual court’s wages, by companies lower to which Re- pre-arbitra- there in is neither here nor spondent had its work. contracted A num- phase: tion Respondent’s employees signed ber of moving right party Whether grievance, alleging company that the had vio- interpreta- wrong question of is a contract lated various of its collective bar- tion for the arbitrator. In these circum- gaining agreement, provided which for arbi- moving party stances the should tration the event the could not judgment, deprived the arbitrator’s case, disputes. their settle own set- judgment when his that it it was and all tlement not had and bargained connotes that was for. The Respondent refused arbitration. The union therefore, courts, weigh- have no business thus suit to it. The district ing consider- merits granted company’s court Motion to Dis- ing equity particular whether there is in a complaint, holding agree- miss the claim, determining par- whether there ment did not confide in arbitrator language ticular the written instrument right to review the defendant’s business support agree- the claim. The will work, judgment in contracting out which is grievances ment is to submit to arbitra- strictly management. a function of This tion, merely those which court will the grounds. affirmed on similar deem meritorious. Court first noted that the Id. at 80 1343. In Man- S.Ct. American policy of encouraging federal the inclusion of ufacturing, the union claimed the com- provision grievances a arbitration of pany seniority had the violated terms of the bargaining “promote collective is meant provision agree- bargaining of the collective stabilization,” industrial at meanwhile, company, ment. The maintained peace,” S.Ct. industrial “achiev[e] id. it had not violated that clause. The strife,” and “substitute for industrial id. Court thus concluded that because there was arbitration, very Grievance “the heart of the a between the to “the system self-government,” of industrial id. at meaning, interpretation application” and of 581, parcel S.Ct. part “is bargaining the agreement, collective arbitra- itself,” bargaining process collective id. at tion should have ordered. at been Id. 80 578, S.Ct. 1347. The Warrior & Gulf judiciary S.Ct. 1343. “When undertakes thus judges found that the role of to determine the merits of a under confronting arbitrability issues should be guise grievance proce- interpreting very scope. limited in Emphasizing the agreements, dure of bargaining collective it “congressional policy in favor of settlement of usurps regime a function which under that disputes by through the machin- entrusted to the arbitration tribunal.” Id. arbitration,” ery id. S.Ct. In companion extremely case of Steel Court delineated an Co., narrow function Navigation workers v. & for courts asked to deter- Warrior Gulf questions pre-arbitration concerning mine Court reiterated its ar- admonition jurisdiction: judges a bitral should have limited in confront role ing arbitrability Respondent judicial issues. Warrior § inquiry under [T]he 301 must be Navigation Company transported & Gulf strictly question confined to the whether products by steel barge agree and steel from a hub party the reluctant did arbitrate Chikasaw, Alabama, performed grievance.... where it An order to arbitrate substantive or & evaluative criteria to grievance should not be de- particular case, arbitrability questions. In a union positive be said nied unless bargaining agree a entered into collective is not the arbitration clause assurance that Publishers, Inc., a ment with Interscienee interpretation that covers susceptible of an agreement did con publishing firm. The dispute. Doubts should be asserted provision making binding express tain an coverage.... In the resolved in favor Interscienee. Several on successors of provisions exclud- any express absence expire, was to months before the grievance from ing particular a merged Wiley & Interscienee John only the forceful evidence of we think most firm, Sons, Inc., publishing another the claim from purpose to exclude a separate entity. a ceased to do business as prevail.... tration can merger At the Interscienee had time 584-85, S.Ct. 1347. Id. at approximately employees, of whom 40 Supreme Court’s products The twin represented by In were union. discus Manufacturing and in American decisions merger, the union sions before virtually irrebuttable Warrior Gulf — a. Sons) (later Wiley & John Interscienee arbitrability sharply a presumption of agree on the effect of the were unable salu limited role for courts-—has merger bargaining agree on the collective tary upon grievance arbitration. effect rights ment it of those district study reported of all federal Wiley employees hired covered John from 1960 until end court cases petitioner merg Sons. The asserted litigation brought compel pertaining to er terminated arbitration, only 143 district court purposes; for all it thus refused judicial in pre-arbitration involved decisions recognize employees’ the union as the the 136 decisions which actu tervention. Of agent to accede to union’s arbitrability question, ally resolved With claim on their behalf. no solution 103(76%) compel resulted order sight, in federal dis the union suit years, of 28 ling arbitration. Over course trict arbitration. court only declined to 33 district court decisions objected to arbitration Sons B. grievance arbitration. See Charles direct grounds. on a number of different Most Craver, as a Labor Arbitration Continuation its final pertinent present to the case was Process, Bargaining Collective 66 Chi. objection, question which raised of so- (citing Peter Kent L.Rev. arbitrability.” The collec- “procedural called LeRoy, Grievance Arbi Feuille Michael provided for bargaining agreement tive in Facts Appeals tration the Federal Courts: stage of the tration as the third (Mar.1990)). Figures, 45 Arb. J. and Wiley argued procedure. that John Sons recognizes of con one that thousands “When Steps One and Two had been because disputes were taken to arbitration tractual followed, duty to arbitrate and since years, during twenty-eight it becomes those Three, duty only no Step arose it had approach Court apparent Supreme that Moreover, alleged dispute. arbitrate the encouraged parties to conclude their bar comply allegedly that union had failed gaining process respect to contract dis following provision agree- of the with the forum, arbitral instead of putes any grievance ment: of must be filed “Notice through intervention.” Id resort Shop Employer and with with the 581-82, at 80 S.Ct. 1347. weeks after occur-' Steward within four f years after American Manu Several rence latest The failure or existence. cases, acturing and Warrior within this party either to file the light on Supreme shed a crucial dis be and be Court time limitation shall construed procedural griev- and tinction between substantive be an of deemed to abandonment challenges. arbitrability & ance.” id. 556 n. 84 S.Ct. 909. very question Livingston, company that the Inc. v. U.S. maintained (1964), “procedural” the Court of whether the conditions 11 L.Ed.2d 898 S.Ct. by a met must decided Manufacturing/Warri arbitrate had been limited the American Co., court and not the arbitrator. The Western Automatic Machine Screw Div. recognized disagreed. Court The Court that Standard Screw Co. v. International Un procedural arbitrability frequently ion, claims Automobile, Agri Aircraft equitable particularly raise issues that are Am., Implement cultural Workers determination, suited to arbitral are (6th Cir.1964). F.2d inextricably often intertwined with merits Technologies, In AT & T Inc. v. Commu underlying dispute: “[L]a- contractual America, nications Workers disputes bor of the kind here cannot involved (1986), 89 L.Ed.2d 648 a ease easily so broken down into their ‘substan- upon heavily by Plaintiff-Appellee relied Questions ‘procedural’ aspects. tive’ and matter, the instant procedural concerning prerequisites expressly principles reaffirmed the set vacuum; they arbitration not arise in do forth in American Manufacturing and War develop dispute context of an actual 648-50, rior See id. at 106 S.Ct. 1415. Gulf. rights parties about the of the to the contract Nonetheless, the Court set forth a in more or those covered it.” Id. at confronting trusive vision for courts arbitra- S.Ct. 909. The thus decided such bility challenges. AT Petitioner & T and matters should be left arbitral union, respondent, were to a col resolution: bargaining agreement covering lective tele grievance procedures Doubt whether phone equipment installation workers. Arti part apply particular of them some to a cle 8 dispute, procedures whether such arising established that differences with re excused, been followed whether spect to failure to unexcused follow them avoids the performance any obligation or the there duty ordinarily to arbitrate cannot be an- under had to mutually be referred to a swered without consideration of the merits agreeable upon arbitrator the written de dispute presented which is for arbi- party. mand of either provided Article 9 ... tration. would be curious rule subject to the limitations contained required which that intertwined issues of provisions agreement, but other “procedure” growing “substance” out subject wise not to the single of a raising the same clause, AT & T was free to exer questions on the same had to facts functions, management cise certain including forums, up carved between two different hiring placement employees other_ deciding Once it the. employment. the termination of Article 20 determined, have, as we prescribed the employees order in which obligated are to submit the matter were to be laid griev off. The union filed a of a “procedural” challenging ance AT lay & T’s decision to off questions grow out of the Chicago location, 79 workers from its base disposition and bear its final should be claiming layoffs violated Article 20 of left to the arbitrator. agreement. AT & Id. at Court 909. This T, hand, the on other refused to submit the applied reasoning the Court’s grievance to ground arbitration the numerous v. occasions. See Chambers lay Article under to off work (6th Cir.1968); Corp., Beaunit 404 F.2d 128 ers when it determined there was a lack of Sanitary American Radiator & Standard facility work at a was inarbitrable. The un Corp. v. the Int’l Brotherhood of of sought by ion then to arbitration Potters, AFL-CIO, Operative F.2d in filing suit federal district court. (6th Cir.1966); Local No. Relying on Carpenters a contract-based view Brotherhood Joiners of of duty arbitrate, Corp., Am. v. to Brunswick 342 F.2d the found Court that a (6th Cir.1965); compulsory R.F. Rhine v. Union Carbide submission to arbitration cannot Cir.1965); Corp., precede 343 F.2d Avco determination that the col- Corp., Div. Electronics Ordnance v. lective does in fact Mitchell, (6th Cir.1964); duty. 336 F.2d create such a The Court stated: Moog’s parties enter into III. MISFORTUNE of to willingness of provide for arbitration agreements that appeals to ac- Federal courts continue drastically re- specified duties would procedural arbitrability ques- knowledge that had the ... if a labor arbitrator duced arbitrators, by tions not are to determined jurisdic- own his power determine judges. procedural equi- issues involve Such rule, applicable ... this the tion. Were optimally table that are left to considerations to re- not be constrained arbitrator would contrast, By arbitral determination. this parties only disputes the solve those Drivers, opinion in General Court’s own by agreed in advance to settle Helpers, Local Union 89 Warehousemen tration, instead, but, empowered would be Warehouse, 852 F.2d 871 Louisville the contract impose obligations “to outside (6th Cir.1988), growing the cor- contradicts by understanding and only limited his con- favoring pus precedent of federal arbitration long- This result undercuts science.” Moog, issues. standing policy promoting indus- federal agreement pro- entered into arbitration through harmony the use of collective trial viding that claims were not arbitrable unless agreements, and is antithetical company inten- union notified of a collective function days compa- within tion arbitrate setting rights out the ny’s grievance. denial of relevant parties.... duties provision agreement provided: Hence, id. S.Ct. 1415. See complaints Any disputes, Section 1— judiciary agree interpret to the left grievances arising alleged violations whether the ment to determine Company Agreement this grievances concerning intended to arbitrate through and determined the fol- settled layoffs predicated on a “lack of work” deter lowing procedure. company Article mination 9 of bargaining agreement. The concluded: (c) Step is not ... satis- —If if factorily settled and If the court determines that Agree- this otherwise arbitrable under provides, it is for arbitrator to so then ment, may be referred to arbitration par- relative merits of the determine the provisions of strict accordance with the interpretations ties’ substantive pertaining court, agreement. It was however, otherwise, provided, but not arbitrator, first instance to decide notify Company if the fails to dispute was to be resolved whether the by registered writing or certified United through arbitration. calendar States mail within 15 reading AT T id. A careful writing Company gives its answer Technologies illustrates that ... then the Union shall be has not weakened its steadfast com- accepted conclusively presumed to have disputes. mitment to labor said Company’s answer thereto and note, however, AT T is crucial to grievance shall not thereafter be arbitra- Technologies, unlike John ble. procedural arbitrability. a case about Rather, Louisville See id. at 872. Defendant of the case was whether the crux Warehouse, discharged involving (“Moog”) a mem- disputes parties intended for protested his plaintiff union who provision go to ber of the layoff arbitration. Wheth- through discharge procedurally defined disputes layoffs be arbitrated er over should stage steps up arbi- clearly arbitrability grievance to the final of substantive is matter arbi- very Moog tration. refused the demand for which the Tril- sort Steelworkers tration, request contending that made requires ogy the courts determine. How- ever, untimely Technologies way and therefore rendered AT & in no whatso- T The thus Supreme grievance not arbitrable. union import ever alters the Moog compel arbitrate. prior Wiley in & Sons. suit John Court’s Shop and with The district court held timeliness of the Union Steward within four request its filing was itself weeks after occurrence or latest exis- arbitrator, by by party tence. The failure either question to be determined file the grievance judgment within this limitation granted and union on the time shall be reversed, concluding construed and be pleadings. This Court deemed an abandonment ” grievance constituting a bar to that it error to arbitration. In so clearly ignored the tration. 376 U.S. at 556 n. doing, this Court admoni- S.Ct. 909 added). (emphasis Wiley tion & to have such of John Sons by procedural questions decided an arbitra- We find that there is no rational basis on tor. distinguish which to between those issues Moog on AT T Court relied & Tech- Wiley Court in John & “ proposition ques- nologies for ‘the procedural, Sons to be deemed and thus re arbitrability tion of arbitrator, served for the —whether and issue con agreement duty creates a for the Moog sidered this Court in both and the particular griev- to arbitrate the present requirements, matter. The notice undeniably an issue for ance —is de- limits, with their time stated are substantial ” (quoting termination.’ Id. at 873 AT & T ly i.e., wording import; similar in and in Technologies, 475 U.S. at Wiley provision provides John & Sons the 1415). This Court thus concluded: in procedure the event that the is not any followed, It seems clear ... and without grievance reason- is deemed “aban doubt, don[ed],” id., able that the arbitration section of and in Moog, provision agreement between these provides ex- proce that the failure to follow the cludes a which the about union dure constitutes a bar to see 852 notice, give required by has failed Although F.2d at 872. there will undoubted (c), Step request of a ly arbitration within be eases where line “substan between days company given after the arbitrability “procedural” tive” arbitra- grievance brought by fine, answer to a the un- bility very will be we find the issue Moog, ], T Technologies [AT ion. & in Moog, Wiley like the issue in John & Sons required to an matter, cannot be to submit arbitra- clearly in the instant falls within expressly tor decision a matter Moog latter classification. Given positive with assurance excluded ar- misplaced Court’s reliance on AT & T Tech bitration. nologies, fundamentally a case about sub arbitrability stantive which cannot reason (footnote omitted). Id. at 874 ably be read to undermine edict of John compare precise instructive to Wiley respect & Sons to matters of agreement terms of the collective procedural arbitrability identical to those Moog in those reviewed difficult, by Moog, confronted if Wiley in Step John & Section Sons. impossible, to understand how (e) and Lo- distinguished Wiley John & Sons. It provided, pertinent cal part: Union not, could fact it did not. notify Company “[I]f the fails to Union writing by registered First, Second, Third, Fourth, Fifth, or certified United Sixth, Seventh, Eighth, Ninth, Tenth, within States mail 15 calendar after the gives Company writing applied answer to a D.C. Wiley Circuits John ’ grievance ... then the shall be conclu- Sons sensible conclusion the issue sively accepted presumed alleged timely to have the Com- whether a union’s failure pany’s satisfy requirement answer thereto and said the notice its intent to ” shall not he Id. arbitrability. arbitrable. at 872 arbitrate is thereafter added). Similarly, (emphasis Peacock, Wiley Mortgage John Corp. Great W. (3d Cir.1997); between the F.3d 222 Barney union Smith (later Publishers, Boone, Interscience Shearson Inc. v. 47 F.3d 750 Sons), Automotive, provided: Cir.1995); “Notice of Petroleum and Allied Employer Employees must be filed with the Indus. No. 618 v.

963 begins explic Ford, Inc., Country 709 F.2d 509 Town and (8th Cir.1983); Hospital & Institutional language agreement. of See UAW v. (6th v. Hale Mem. Yard-Man, Inc., 1476, Marshal Workers 716 1479 F.2d (9th Cir.1981); 38, Hosp., 40-11 Cir.1983). 647 F.2d (“WAGES”) IX Article C.A.B., 546, Lines, F.2d Inc. v. 574 Delta Air A of the collective Schedule (D.C.Cir.1978); Int’l Tobacco Workers 550 and Local 47 949, F.2d Corp., v. 448 Local 317 Lorillard subject wages. specifically address of Cir.1971); (4th International 953 (“GRIEVANCE Article V AND ARBITRA Automobile, Agricul Aerospace and United PROCEDURE”) provides “[i]f TION Folding v. Carrier Implement Workers ture grievances by employe there are (10th 47, Cir.1970); 49 Corp., 422 F.2d disputes any kind any differences or of 128, Corp., F.2d v. Beaunit 404 Chambers Employer the Un character between the (6th Cir.1968); v. Lo Palestine Tel. Co. 131 ion, involving applica Int’l Brotherhood Electrical cal 1506 of Agreement of this tion (5th Cir.1967); Workers, 234 379 F.2d promulgated by the Em work rules and/or Electrical v. 51 Int’l Brotherhood Workers dispute ployer, such difference or (7th Co., F.2d Cir. Illinois Power pursuant be handled” to terms of 1966); Corp. Tel. v. Rochester Communica By Article. and Between Workers, (2d Cir.1965); tion 340 F.2d 237 3, (emphases Local 47 at & J.A. Street, Amalgamated Trailways v. Ass’n of added). ... is determined “Once Ry. Employees Div. Elec. Coach obligated to parties are submit the (1st Cir.1965). F.2d It is also not ‘procedur matter of a inconsequential since was decided questions grow al’ out occasions this Court numerous Wiley approvingly disposition has cited John & Sons and bear on its final should left procedural Sons, principle that matters of arbi- Wiley & the arbitrator.” John arbitrator, trability are be decided 543, 557-58, Livingston, 376 U.S. v. Corp., not a court. Interstate Brands (1964). 909, 11 L.Ed.2d 898 Chauffeurs, Butternut Div. v. Team Bread sters, Helpers Local Un Warehousemen IV. CONCLUSION (6th Cir.1990); F.2d

ion No. Workers, Serv., Transp., Indus. United Prof. panel ignore Were this free Am., Atlantic, N. Lakes Gov’t prevent us from prudential limitations which Food and and Inland Waters Dist. Court, reversing an earlier decision this Workers, Dist. Comm. Union Local judgment of the we would reverse the dis (6th Cir.1990); Apperson v. F.2d entry court and remand for of an order trict (6th Corp., Fleet 879 F.2d Carrier directing submit the Cir.1989). terms of to arbitration accordance with the seminal Under the Court’s bargaining agreement. But Wiley the issue of John permit to overrule anoth rules do not us our satisfy alleged whether a union’s failure to panel must of this Court. We therefore er requirement arbitration is the notice barred judgment of court. the district affirm the arbitrability. This issue arbitrator, not the dis reserved for the WISEMAN, dissenting. Judge, District Sons, the trict court. Under Drivers, agree I that General Warehouse is limited district court’s role determi Helpers, Local 89 v. men and obligated to nation of whether the are Warehouse, 852 F.2d 871 Cir. Louisville “subject matter” of a submit 1988) grave departure from Su represents a “subject arbitration. The matter” of the dis Moog should and that preme Court doctrine or, precisely, pute wages more this ease reconsidered, along opinion it Simulcasting on of Full Card Race effect self, panel of this Court. a full en banc way’s employees’ of its unionized calculation Nevertheless, I I because believe pay. Interpretation dissent base rate distinguished ing to Manager the instant ease can the General the Em- and, ployer Court and Sixth and shall be discussed him or precedent, district designated represen- Circuit court should her her his or and/or aggrieved be reversed. employee tative and the and/or representative his or her within Union notes, majority parties As the (24) twenty four hours. 18, September September bar met case at on (C)... 20, 9, Unless the Union serves written October 1996 to discuss the effect Simulcasting Employer notice via Certified Mail on that Full Card would (30) paid employees. thirty wages completion to Local At the within after the 20, meeting, pro- September meeting Paragraph Local 47 referred to in (B), above, grievance. According a written binding duced of its intent to seek Raceway, presented event, Local 47 the written in such then grievance “apparent due to Local 47’s con- submitting shall be barred from ever such language cern” that the bar- grievance, dispute disagreement to arbi- agreement required grievance gaining tration. forty-eight within filed hours after had (Agreement By Raceway and Between 8.) (Appellees’ According arisen. Br. 3, 13.) 47 at Local J.A. at 47, Raceway requested Local that the Union Raceway that, insists under Article ofV filing grievance. (Appellant’s defer its Br. at bargaining agreement, “in or- 9.) occasions, separate Raceway two ex- On timely filed, der to have been considered deadline, filing Septem- tended the first until [Raceway] have, not, request should and did 20, ber 1996 and then to October 1996. 17,1996.” arbitration on or before November meeting parties’ last face-to-face oc- 9.) (Appellees’ Although Br. at it is unclear curred October 1996. On October exactly Raceway how arrived at a cut-off griev- presented its written 17, Raceway apparently date November Raceway’s Manager. Al- ance to General gave contends that when Local 47 until held, grievance though meeting no was Race- simply October to file a it was

way’s general orally manager denied the extending forty-eight period hour set grievance. Local 47 then demanded arbitra- V.1(A). forth Article met Raceway tion on November re- face-to-face the last time on October 9 proceed arbitration, contending fused to and the not resolved notify Local 47 did not its October and October the deadline for timely desire to arbitrate in a manner. Therefore, by further action. the time Local The collective grievance filed on October provides ease at bar follows: as was, effect, referring ARTICLE V. GRIEVANCE AND AR- writing Raceway’s Manager General BITRATION PROCEDURE V.l(B) required by Article of the collective any 5.1 If there are ... differences or bargaining agreement. Id. at 8. Arti- While dispute[s] kind or character be- V.l(B) requires cle Union and Employer tween and the involv- twenty-four within meet hours after a ing application filed, written and Local ... ... such Instead, Raceway’s general did meet. difference or shall be handled in manager orally grievance. denied the There- following manner: fore, Raceway arrived at the conclusion that (A) representative [A] of the Union V.l(B) (C), under Articles Local (48) shall, forty eight within hours after twenty-four period plus thirty days hour has arisen ... discuss the from the date written Manager matter with the Mutuel his notify until filed —or November 17—to Race- designated representative. way proceed of its desire to to arbitration. (B) If no notify Raceway with[in] reached Because did twenty four hours after such discus- thirty-four days its desire arbitrate until sion, the matter in writ- referred later on November the Union’s notice was Therefore, that Article V.l is not positive assurance” refused to ar- untimely. susceptible interpretation. of Local 47’s parties’ dispute. bitrate Consequently, I the district would reverse has its own inter- Raceway, Local 47 Like dispute parties’ procedural court because leading up to Race- pretation of events arbitra- itself should have been submitted to argues, 47 way’s refusal to arbitrate. Local tion. essence, Raceway gave when the Un- by My analysis is not affected this Court’s 20 file October ion until Drivers, upon decision in General Warehousemen postponing the date Helpers, v. Louis- Article Local Union 89 periods the time set forth (6th Cir.1988). Warehouse, Thus, F.2d Local ville begin to run. when V.l would be- on October the The court found that 47 filed its and, ‘positive “expressly as- officially fore was with “arisen” had V.1(A), from See id. forty-eight surance’ excluded arbitration.” had Article Union say positive assurance at 874. I cannot until 19—to discuss hours —or October Race- Manager. procedural If an dispute with the Mutuel way and from arbitra- twenty- Local 47 excluded not reached within Indeed, I tion. believe four hours —or 20—the Union October disagreement precisely case is twenty-four until Oc- the instant had another hours —or type for arbitration. writing matter in intended 21—to refer the tober I manager Accordingly, dissent. Raceway’s general and discuss V.l(B). Finally, under with him. Article V.l(C), thirty

Article notify until 20—to

October 21—or November

Raceway of to arbitrate the dis- its desire

pute. notified Because arbitrate

of its desire to November timely under the terms of

Union’s notice was America, Plaintiff- UNITED STATES proceeded to arbitration. parties should have Appellee/Cross-Appellant, a collective When v. clause, is pre an arbitration there contains disputes, including procedural sumption that WARWICK, Edgar Defendant- Johnnie arbi disagreements, should be submitted to Appellant/Cross-Appellee. Technologies, v. tration. See AT T Nos. 97-6072. Am., Communications Workers 475 U.S. L.Ed.2d 648 Appeals, United States Court (1986). overcome presumption This Sixth Circuit. “ may positive ‘it only if be said assur Argued Dec. suscep that the arbitration clause is ance of an that covers tible 10, 1999. Decided Feb. dispute. Doubts should be resolved asserted ” coverage.’ (quoting Id. favor Navigation Steelworkers Warrior Co., 574, 582-83, S.Ct. Drivers, (1960)); Lo General

L.Ed.2d 1409 Inc., Hyde, No. v. Malone & cal Union denied, Cir.), cert. F.3d 665, 130 L.Ed.2d S.Ct. U.S.

(1994). case, Raceway’s inter instant less

pretation of Article is no more or V.l interpretation of

plausible Local 47’s than Thus, said “with V.l. it cannot be

Article

Case Details

Case Name: Raceway Park, Inc. Toledo Maumee Raceways, Inc. v. Local 47, Service Employees International Union

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 25, 1999

Citation: 167 F.3d 953

Docket Number: 97-4251

Court Abbreviation: 6th Cir.